If things remain as they seem and Joe Biden becomes the next President of the United State, then that election change workplace laws. The Trump administration enacted business friendly employment policies that may take a turn now once Biden is in office. According to Biden’s statements, as part of his platform, Biden plans to instill a pro-labor agenda with aims at giving workers and unions an advantage after the employer-friendly Trump administration laws. Biden has stated that he supports the Protecting the Right to Organize Act. Cameron Fox of Paul Hastings LLP states that it “will be the biggest change in labor law that we’ve seen in more than 75 years”. That is if Democrats are able to get it passed.
The Trump administration enacted a myriad of employment and labor laws that favor employers and the federal government. The administration rolled back Obama-era rules by implementing policies that limited the protection for workers. The Biden administration would look to re-implement Obama-era pro worker rules while putting in efforts to expand employer liability for unsafe work conditions, especially as the pandemic continues.
There are four areas that labor and employment lawyers should look out for after Biden moves into the White House.
The Gig Economy
The Biden administration will most likely stop the Trump administration’s push to make it easier for businesses that are within the gig economy to define their workers as independent contractors (where they receive less legal protection and benefits than employees). The gig economy is a free market system where temporary positions are more frequent, allowing organizations to hire independent workers for short-term commitments. For example, weeks before the election, the Trump Labor Department issued proposed rules that offered a more expansive view of independent contractors under the Fair Labor Standards Act. The U.S. Department of Labor’s proposal, which has yet to be finalized, was geared to emphasize employer control and entrepreneurship. Due to the tardy timing of the rule, it can be a big target for the Biden administration and Democrats who yearn to impose more stringent standards through the regulatory process or through legislation. Independent contractors are generally not protected by wage, discrimination, and other laws that protect traditional employees.
- About Face at the NLRB
The Biden Administration will utilize the newly won Presidential role to remake the National Labor Relations Board. Trump’s administration wiped away a plethora of Obama-era decisions and initiatives through cases and amended regulations by changing how affiliated businesses can be deemed joint employers of the same workers under the National Labor Relations Act. Additionally, the administration wanted rules that limit unions’ access to worker contact information and prohibits college teaching assistances from forming unions.
Biden will have the opportunity to nominate a new NLRB general counsel who functions as the agency’s prosecutor and handles day-to-day financial matters. Biden will also be able to implement a Democratic majority on the board when Trump’s appointee William Emanuel’s term expires in August 2021.
- Narrowing the Pay Gap
Democratic states have become more aggressive in addressing workplace issues that received the short end of the stick on the federal level. One of those areas was pay discrimination. If Democrats win the majority in the Senate, the Biden administration is expected to strengthen the federal fair pay laws through new legislation or through regulatory actions.
- Diversity Training: A ‘Minute One’ Priority
Trump issued an executive order on September 22, 2020, banning federal contractors from conducting certain types of diversity training, deeming it “Anti-American.” The executive order stated that contractors could not conduct workplace training that “inculcates in its employees any form of race or sex-stereotyping or any form of race or sex scapegoating”, such as training that show views that “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or subconsciously”. Ron Holland, a California-based partner at McDermott Will & Emery LLP, believes that the Biden administration will see that executive order as a low-hanging fruit that will quickly be discarded.
At this point, there any many unknowns, for instance, with President Trump mounting legal battles across the county, the next President is even unknown at this time. However, you can be sure that if the 46th President is Joe Biden, there will be big changes in the field of employment law.
About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://